Andrew Schlank v Virginia Irrigation Systems and Service

[2015] FWC 355

[2015] FWC 355

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Schlank
v
Virginia Irrigation Systems and Service
(U2014/16401)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 14 JANUARY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Schlank has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Virginia Irrigation Systems and Service Pty Ltd (the Respondent). At a telephone conference convened on 14 January 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mr Schlank’s application was lodged on 16 December 2014. In that application Mr Schlank advised his employment was terminated on 3 November 2014 with effect from 4 November 2014. Mr Schlank asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“My dismissal cam suddenly and without warning. It has taken till now for me to be in a financial position to make this claim. I only learnt of the 21 day cap and indeed the application fee after being directed to the site by a law firm. This occurred towards the end of the second week and by then all of what I had received was used to pay essential and outstanding bills. I am aware an application could have been made to have this fee waived, the amount is reasonable but I felt embarrassed that I could not afford it. I have attached a letter from my bank, it gives a snapshot of my current financial position, I am struggling because of m y former employer’s actions. Please accept this application, the actions of my former employer are unlawful and with prejudice. ...” (sic)

[3] I note that the attachment represented the advice of the termination of Mr Schlank’s employment.

[4] On 5 January 2015 my Associate corresponded with both Mr Schlank and the respondent and advised that the extension of time issue would be considered through a telephone conference on 14 January 2015. Substantial information about the extension of time issue was provided to the parties. Mr Schlank was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 7 January 2015.

[5] Additional information was received from Mr Schlank in the following terms:

“At the time of my dismissal and the proceeding 6/8 weeks, I would consider my personal circumstances to be extraordinary. My capacity to deal with another major event at this point in time had been all but consumed. In fact the suddenness and indeed the manner in which the dismissal took place only made things harder. In the lead up to early December, I was preparing for a serious matter that was before the District Court. In preparing for this matter, a significant amount of time was spent obtaining character references and a psychological evaluation. This matter was resolved favorably. Also during this period I was pursuing a counter claim against Fulham Funnerals with regards to my late mother. This has since been settled. Of equal significance and related to my late mother, was a formal request by one of the beneficiaries of her estate for information relating to the estate. As the sole executor, It was my responsibility to respond as requested. I would consider any one of these events to be significant, they were all very time consuming. To be dealing with all three at one time was extremely difficult.

I would also like to draw attention to my mental health and the state of it at that point in time, November/December 2014. I was and am currently suffering from mixed Anxiety and Depression and I am receiving treatment for this.”  1 (sic)

[6] Mr Schlank provided copies of correspondence and medical assessments to support his position.

[7] The Employer’s Response to the application advised that the Respondent objected to an extension of time and objected to the application on the basis that the termination of Mr Schlank’s employment was a case of genuine redundancy.

[8] Mr Schlank participated in the telephone conference. Mr Vigor from the Respondent also participated in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[9] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[10] On the information before me I am satisfied that the application was made some 17 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[11] Mr Schlank’s reasons for the delay were, firstly, that he was unaware of the time limit until he saw a lawyer in the second week following the termination of his employment. Secondly, that over this time he was preoccupied with matters involving the District Court and was also pursuing two matters associated with his late mother such that he simply did not have time to action this application. Mr Schlank appears to assert that he was unable to pay the lodgement fee and was too embarrassed to seek a waiver of that fee. Mr Schlank also asserted that, in November and December 2014 he was suffering from anxiety and depression. I have considered these reasons for the delay, but I do not consider that they are of the nature of exceptional circumstances. I have considered the medical evidence which Mr Schlank asserted substantiated his incapacity to lodge the application over this time. I am not satisfied that this information establishes that he was unable to lodge the application and, in any event, I have noted that over this time Mr Schlank, on his own advice, was involved in substantial litigation. Mr Schlank’s lack of awareness of the time limit for a limited period of time cannot be an acceptable reason for the delay. To the extent that he was busy with other legal matters, this does not provide a basis for an exceptional circumstance. Mr Schlank’s apparent embarrassment associated with seeking a waiver cannot be an acceptable reason for the delay and is inconsistent with his assertion that he was unaware of the time limit. It is clear from Mr Schlank’s application that he was aware of the termination of his employment on the day before, or the day that this termination took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Schlank pursued other actions so as to challenge the termination of his employment. In this respect I have noted that he saw a lawyer within two weeks of the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[12] In terms of the merits of the application, I have noted the information provided to Mr Schlank in the notice of termination of his employment which was attached to the application. That information indicates that the termination of his employment was a consequence of a redundancy. That is consistent with the advice provided by the Respondent. If that redundancy assertion was established in the evidence, I consider that it is unlikely that Mr Schlank’s application would be successful. Notwithstanding this, I have noted that Mr Schlank asserts that the necessary prerequisites for the termination of his employment to be regarded as a genuine redundancy have not been met. Information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[13] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[14] Accordingly I have concluded that the material before me does not establish that Mr Schlank’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR560072) giving effect to this decision will be issued.

Appearances (by telephone):

A Schlank on his own behalf.

M Vigor for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

January 14.

 1   Submission (email), 7 January 2015

 2   [2011] FWAFB 975

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